done in the playground area -- with one month since knowing -- there are no reports that work was redone. to me, it's a serious matter. as they say you build from ground up. so the ground is poor, unstable, that entire structure is. don't get me wrong. i want this park done as soon as possible. i imagine -- all this construction like from the street. sometimes i work from my home office. that's very disturbing. so i am 100% there, with the community, to get this park done. but watching the work, i don't know how the city allow it to continue. as i told some -- in july, some -- work is done in one dog area that will take two weeks. it has been almost two months before it's been completed. to do this work, the entire area has been ripped apart. and similar work needs to be done through all the -- the park. we were promised the park would

be completed in april but just now, we received the -- i was shown the report that the -- from the mary hobson that work is to be done -- is not to be done until july. work is continuing but -- that was poured and ripped out again, i mean that just doesn't right. it doesn't look right. >> i'm sorry, i just need clarification, sir. i'd like some clarification. were you paid to review the documents? >> oh, no. i spent like four hours, my very personal time, review documents -- perfect. it occurred after the fact. thank you. >> so, anyway, the only question is there that we need to know what's going on in the park. and any additional information, definitely will help. and my opinion, you should grant

rehearing, and you should know where the work's being done -- the permits -- inspection oversight. please grant the rehearing. thank you. >> thank you. is there any other public comment? okay. seeing none then commissioners, the matter is submitted. >> vice president fung: i have another question for ms. gallagher. let's clarify a couple of things on the timeline of documentation that was provided to you. the department has indicated you made six sunshine requests. the one that was provided to you on august 20th was reflective of which request? >> prior to the first hearing, i made two sunshine requests. one was dated june 21 and the

other was dated june 26. i also, at the meeting, held at supervisor farrell's office specifically explained what i was looking for, two -- and ms. hobson. if they want to count that as a third request i thought of it more as a clarification. that was july 29. the documents that i think are very important here that weren't reviewed -- that were not provided until august 20 are related to the inspection. so if you notice i didn't talk about inspections at the first hearing. the other two document is the 610 permit, the approved plans. >> vice president fung: those were the ones that you provided copies to us. >> yes. i provided only some. i didn't want to give you all of them. it's lots of pages. >> vice president fung: thank you. >> commissioner lazarus: you just stated and i believe it's in some of our material that you made requests in june. the department responded that the materials, the information was ready. they did not hear back from you for almost a month. can you explain that lapse please. >> the first things i requested

included the plans and the notes from the project. and i was contacted by two different people. i did not realize that there were two different sets of information. i went down the next week, after making my request, before fourth of july, and i went to the department -- the planning department, who provided me with two project folders, two project files and allowed me to make copies of relevant materials in those files. i didn't realize that the other materials, because they were all supposed to be project plans, would be different. but they did include some additional different information about the original permit plans. the original permit plans of course are not -- they're not part of the appeal because they're not part of the approved plans. >> commissioner lazarus: why wouldn't you use responses from rec and park which were made on three spate days to clarify what you had, what you needed and what they thought you wanted? >> my request went to mary hobson and then i started

receiving e-mails from -- >> commissioner lazarus: she was copied so wouldn't that indicate she asked her to respond to you? >> everybody in the different departments e-mails from sfgov.org. when i received the first set of stuff from cecilia i didn't know exactly the relationship. so when i thought i had seen all of the permit plans then i believed i had seen all of those. i didn't put that together. it was only later, when i was still asking for other documents, to try to clarify in july, that i realized that there would be a copy -- that there may be some additional materials. those materials, for the most part, the duplicative ones that i had already seen at the planning department are not things that i raised any issues related to. i've raised issues related to materials that were not provided, and that were not sitting waiting for me anywhere. they were not provided until there was an e-mail that saits

that she needs to make certain to get documents to me by at least august 20. on august 20 at 11:49 in the morning i received an e-mail from mary hobson saying they have these new e-mails and i went in the next day and had to get a cd because it was so voluminous i couldn't get it through e-mail. >> commissioner lazarus: thank you. >> president hwang: i'm sorry that you sat down. i just thought of another question. i know it was the testimony of the public commenter that pointed out the different documents showing the inspection of the seat well, and the issues with the soil. was that ever between the time that you discovered it to today,

raised, and brought to park rec or anyone at any of the departments that -- >> after the last hearing, i spoke to the president of the friends of lafayette park and asked her if she was not concerned that there were solid failure scores for the test. she said she would address it to mary hobson. i included nor about that in my brief to you requesting this rehearing. >> president hwang: right. so you relied on someone from -- for lack of a better word, your opposition to get it directly to park and rec. >> i would hope lafayette park are not my opposition. >> commissioner lazarus: accordinaccord -- >> president hwang: according to this, they are. >> i want the park to be finished as soon as possible as well. as to whom i addressed it, i also addressed this matter to supervisor farrell's office, and i also have, you know, gone down to the department of building

inspectors. i've sat with three different -- >> president hwang: with this issue, that particular issue that was raised today that you are alleging constitutes new evidence. >> yes. i sat with specifically a woman last name is hugh m., a special technical specialist, i sat with her a few tuesdays ago before writing my papers, maybe it was two tuesdays ago and asked her what would be the proper remedy if you had failures on all soil scores. i also asked for and received from rec and park the soil specific guidelines that they were using very detailed contract documents. i brought that with me, and the plans, down to the department of building inspectors and sat with the technical specialist. i asked her what the proper cure would be for that and she said well obviously you would need to remove the rebar and recompact the soil and then went through all of the inspection reports. i did ask for an update for any additional inspection reports and i was provided those. i now have seen the reports

through the end of august and there was nothing ever done to go back and fix that problem. >> president hwang: did you lodge a complaint with respect to what you discovered? >> i think i followed the argument here, which is that you discovered, in the production, the new alleged new evidence that the inspection disclosed -- exposed some failure in the soil, and then no further correction was done. did you lodge a complaint with the department upon learning this? or did you just go to get information about what should have been done? >> i didn't lodge a complaint with the department of building inspectors. >> president hwang: or with park rec. >> no. i simply advised them of the situation in my brief. >> president hwang: in your brief. >> yes. it's stated in my brief and i copied and included copies of those reports, as attachments to

the brief to request the rehearing. >> president hwang: what would we gain from having your matter reheard on this -- based on this new evidence? >> well we just heard again from another department that there is no work planned for the summit. and i don't understand how that's the case when later issued permit show work happening at the summit, and work that would be done without taking care of the archeological facts that we do know are there, and work that was approved after. >> president hwang: so you don't -- you're not hoping for a rehearing to address the concern that you believe is new evidence. >> absolutely. that's exactly what i want pmpleghtsdz sounds like you're talking about some other -- >> the two pieces of evidence that i think are very crucial here are about the inspections and failure to do something to correct those things, and about the changes to what we've been told would happen at the summit. it seems like no one really

knows what's happening at the summit. >> president hwang: we heard from planning no work will be done. it's on the record so no work seen being done at the summit and they can take down the construction tape and take people away from there and stop preparing to do work there and reopen that part of the park so there's no work being done there. >> president hwang: i'd like to hear from planning on that subject. just to confirm that my understanding is clear, and that the requester's understanding is clear. >> is that potentially a staging area for some other work? >> i couldn't speak to the question to staging. i'm sure ms. hobson can. with respect to our department appellant stated in the brief and a few minutes ago that mr. sanchez at the august hearing did indicate no work was to take place in the summit. it is our understanding tonight that no work is to take place in the summit. i'm sure ms. hobson could confirm that now if you so

choose. >> president hwang: please. before you speak, ms. gallagher just raised a illustration. can you just raise it again so maybe you can address -- no. just what you're trying to signal to us. okay. >> i think what mr. sanchez articulated at the first meeting is that there is no work at the summit, covered under permit 1610. the one that is suspended before you for consideration today. we do have work at the summit under a -- actually i think i gave you the wrong number. 0448 is the permit that's under suspension, which is the bathroom, pathways, and retaining wall permit. there is work at the summit under a subsequent permit which has been issued and has also been appealed by ms. gallagher.

so you'll hear all about the work at the summit in our october hearing. >> president hwang: okay. >> vice president fung: i think that was clearly stated in the brief. >> well it's being -- again. i just wanted clarification. >> vice president fung: it's on us. >> president hwang: yes, it's on us. >> vice president fung: commissioners, the question that has been raised is whether the timeliness and delivery of of information, which was predominantly inspection reports, rises to the level of having a impact on the entitlement of the permit. what is before us is not professional competency or incompetency, or what is defective work that needs to be replaced or not. the question is whether the

information that was provided, rather late, rises to having an impact on the overall entitlement of the permit. i don't believe that it does. i don't think that the soil -- inspection reports which reflected implementation of the permit is really reflective of the issues of the permit. therefore i would not support a rehearing. >> president hwang: well stated. and i would agree. >> vice president fung: and this case will be back before us. >> president hwang: right. >> vice president fung: i move to deny rehearing. >> thank you. mr. pacheco, when you're ready. >> on that motion from vice president fung to deny the rehearing request, president hwang, aye. commissioner lazarus, aye. the vote is 3-0.

this rehearing request is denied and a notice of decision and order shall be released. >> president hwang: thank you. so we'll move on to item 5 which is appeal 12-056 pat buscovich versus department of building dption. subject property at 2853-2857 broderick street protesting issuance on april 17, 2012 to inger conrad to alter a building to raise the building 36 inches, build new garage for future expansion. you may recall this matter was before you last time as a rehearing request, which was granted. so it is on for rehearing today so the parties can present to you a settlement. >> i'm irving seretski the appellant for the rehearing, on behalf of kate poll voi. we're happy to tell you all the neighbors on the block, all

2853-57 have come to a very great agreement, and we are very pleased with it. it was negotiated on the part of all the principals, and it is really a very satifactory agreement. we hope that you will do your very best to expedite our getting an amended permit, and do everything that she needs to do to get started and get finished with the job just as quickly as possible. >> geng, john -- here on behalf of the permit holder. we are happy to announce that we are also in agreement with the plans that we provided to the board and that we're asking that you make those changes to us so that we can fulfill this settlement agreement. it has been requested by the former represent of the appellants, his name is pat buscovich, his name is on the appeal that we mention that. he is no longer representing the appellants and was not involved with the negotiations leading to

this settlement. we're working with the permit holder and appellants and have come to this agreement and respectfully request that you make the changes that we've agreed to so we can move forward with this permit. thank you. >> vice president fung: is your exhibit a dated august 22, 2012 the official settlement document? >> yes, that is. it's actually exhibit a to the actual settlement agreement, commissioner. >> are there no further questions for the parties, we can see if there's any departmental comment. nothing? any public comment? okay. no other public comment. commissioners, if you have no questions, then the matter is before you.

>> say the parties have reached an agreement. we should probably go ahead and confirm it. >> president hwang: if you care to support this settlement agreement, what you would need to do is to grant the appeal, and issue the permit with the modifications reflected in exhibit a. and that would be on the basis that the parties have reached this agreement. mr. pacheco when you're ready if you could call the roll on that motion please. >> we have a motion from commissioner lazarus to grant the repeel and it is with the adoption revised plans, exhibit a dated august 22, 2012. and this is on the basis of agreement between the parties. on that motion, vice president fung, aye, president hwang, aye,

commissioner hurtado is absent. it is 3-0. this permit is upheld with those revised plans and a notice of decision and order will be released, and no other rehearing requests are allowed. thank you. >> president hwang: thank you. calling item 6, appeal 12-081 kinami ahmed dba "nile café", appellant(s), versus department of public health, respondent. 544 jones street. appealing the 30-day suspension of a tobacco product sales permit. reason for suspension: violation of state law and the san francisco health code which p tobacco products. director's case no. smk12-06. we will start with the appellant's agent and you have seven minutes. >> thank you.

abraham -- appearing on behalf of mr. ahmed. the reason for the appeal is the decision of the department is that it is overbroad and punitive. in addition we request a -- that the board review de novo the denial of the exemption request that the appellant submitted timely in a timely fashion. the smoking of huka pipes and the enjoyment of the camaraderie that occurs around that have great cultural significance. unfortunately, the smoking ban in san francisco allowed the huka bar to fall through the cracks of that regulation. as i stated in my brief, mr. ah med because he is a muslim is not able to sell alcohol and it

does not comply with regulations regarding bars or tafns s -- taverns so he could not fall within the limited exemption to the ban. when he submitted the exemption he put a little box written next to it huka bar in hopes of continuing to operate it that way. he did not receive a clear indication that he understood that his exception request had been denied, up until the time of the recent hearing on this matter. so in terms of the arguments that are being made here, there are two i think that should be addressed. one is can the appellant, nile cafe, continue to sell and serve non-tobacco products that are used with huka pipes and all the receptacles and i ask serving

equipment that goes along with that. and the second is, is there some way to fit nile cafe into one of the exceptions. on the first point about the non-tobacco products, the respondent argues we shouldn't allow the use and enjoyment of non-tobacco products in it nile cafe because it would cause problems with enforcement of the law. that is respectfully not a legitimate reason for banning a product's use. the statute here is very clear. san francisco health code section 1009.21 states that smoking, or to smoke means that it includes inhaling, exhaling, or carrying smoking equipment for other weed or plant. non-tobacco stones, as the appellant wishes to continue to

serve at nile cafe, are none of those. it's not a tobacco. it's not a weed or a plant. it's a stone with some syrup on it that's vol tied by the ash -- vaporized -- exactly. but by the coals and in a huka pipe. so the old latin term expresseso unus -- i think applies here. the express mention of one thing in the statute excludes all others. so saying well it should be excluded or i would make our enforcement of the law as it stands difficult, is not a legitimate reason for denying the continued use of huka pipes. so the department's decision was overbroad and should be overturn odd that point. in addition, we request that the

30 day suspension of the tobacco license be overturned as punitive and unnecessary in this case, where mr. ahmed -- applicable to his establishment. >> vice president fung: counselor, has there been previous violations? >> i'm sorry, previous to? >> vice president fung: to this one. this denial. >> no. >> vice president fung: okay. not denial, but suspension. >> you reserve your right to ask questions after -- >> vice president fung: you will have a chance for rebuttal. >> thank you. >> president hwang: thank you. we can hear from the department now. >> good evening, commissioners. i am janine young from

environmental health, i'm senior inspector. since november 2005, nile cafe has only been approved, has license and permits to operate a restaurant. nile cafe is a restaurant, a cafe that serves coffee, expresseso, tea, smoothies and other beverages. also the cafe is located in a building that contains 87 residential units. i first met the owner of the nile cafe in june 2010. and we met and we spoke about the ordinance. i told him, in june 2010, that the ordinance prohibited smoking inside restaurants, that the the ordinance also did not qualify restaurants for a smoking exemption. and i also informed him that in order to qualify for an exemption, he would have had to become a bar tavern or a tobacco shop, prior to december 31,

2009. and that the only way that smoking could be allowed indoors was that there had to be a new law on the books. but mr. ahmed requested to apply for the exemption anyway. when i received the exemption it was noted that they were trying to meet the exemption under bar with no employees. now, the health code defines a bar as a business devoted to serving alcoholic beverages or consumption and nile cafe is not a bar. now on the exemption application, nile cafe did not check off tobacco shop. well they could not check off tobacco shop because the health code states that the tobacco shop cannot be located within or adjacent to a restaurant, bar or tavern. and furthermore, the california business and professional code include, in its definition, that

a tobacco shop does not sell alcoholic beverages or food for consumption on the premise. so the san francisco law is very clear. there is no smoking indoors or outdoors for any type of establishment that serves food or beverages. and mr. ahmed the choice to violate the health code by allowing his patrons to smoke indoors even after our meeting, even after i denied the exemption application, and even the follow-up phone calls that we had in 2010. i also sent a notice to comply. that was in 2011. and then there were two notices of violations that were issued in february and may of this year. so because of the continued repeat violation, the department ordered a cease and desist of smoking inside of the cafe, also insisted the complete removal of all smoking products and smoking devices, and a 30 day suspension

for the tobacco permit. now my last meeting with mr. ahmed was june 19, 2012 and he showed me his new product that he wanted to convert to, which is these rocks soaknd jis rin and the glycerin is infused with flavors. i went last night and wanted -- to observe the operations. so it was the same huka pipes being used, the smoking devices are still being lit by hot charcoal. the product is rock, but i did learn on the internet that you can mix tobacco products with these rocks. the patrons were inhaling, exhaling this heated product through the huka pipe. and then the cafe is still selling tobacco, and there were several open containers of huka tobacco products. and when i asked the employee why, if they were using this

rock product would they need to have open containers of tobacco. the employee stated that these products are now being sold in small portions to their customers. and then they tell their customers to go smoke it somewhere else. but with this smoking devices, now on the site, the huka tobacco product now sold in small portions, directly to the customer, is really no way of guaranteeing that the patrons or the employees would not add the tobacco to the rocks. the only way the department would have to verify that is to do something like a sting operation, or, you know, to go in and grab samples, while people are smoking, and this would create an enforcement nightmare for the department of public health. and i have aliana cur show to give another testimon